Defendant's Sentencing Memorandum — United States v. Gary Lomax

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U.S. District Court, Southern District of West Virginia · No. 2:24-cr-00114 · Doc. 23 · 2024-11-06 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT  
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA 
CHARLESTION 
 
 
UNITED STATES OF AMERICA, 
 
 
Plaintiff, 
 
vs.  
 
DOCKET NO: 0424 2:24CR00114-001  
 
 
GARY LOMAX, 
 
 
Defendant. 
 
DEFENDANT’S SENTENCING MEMORANDUM  
 
Defendant Gary Lomax, by counsel, submits his sentencing memorandum.  The 
Presentence Investigation Report correctly calculates an advisory U.S.S.G. range of 4-10 
months’ imprisonment based upon a Total Offense Level of 8 and a Criminal History Category 
of II.   The Presentence Investigation Report notes that Mr. Lomax is eligible for not less than 
one nor more than five years of probation. 
Mr. Lomax submits that a sentence of non-incarceration is sufficient to satisfy the 
purposes of sentencing and asks the Court to vary downward and impose a sentence of 
probation, home confinement or some combination thereof. 
I. 
Section 3553(a)(1): The nature and circumstances of the offense and the history and 
characteristics of the Defendant. 
 
A. 
Nature and Circumstances of the Offense 
 
Mr. Lomax pled guilty to a single-count Information charging him with violating 18. 
U.S.C. § 641 for falsely applying for and receiving unemployment compensation between 
April and June of 2020, when he was employed as a car salesman, thereby causing a loss of 
$8,760 to Workforce West Virginia and the Federal Pandemic Unemployment Compensation 
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program.  Additionally, Mr. Lomax has admitted his relevant conduct includes fraudulently 
obtaining $20,832 in PPP loan proceeds from the Small Business Administration in May of 
2021.  
Mr. Lomax knows that his conduct was wrong.  He deeply regrets his decisions and 
actions, He offers no excuses and knows there are none.   Nevertheless, the context of his 
actions is important.  During the global pandemic, Mr. Lomax was unemployed for a time and 
lawfully drew unemployment compensation benefits.  When he returned to work selling cars, 
his compensation was greatly diminished and he struggled to make ends meet.  Mr. Lomax, 
who suffers from diagnosed anxiety, was worried about his future, especially within the 
setting of the widespread social and economic uncertainty present during the global pandemic.  
Mr. Lomax was worried about how he would pay his debts and support himself and his 
disabled ex-wife, with whom he shares a home.  He worried about how he would pay their 
rent, which was several months behind.  Although none of these financial pressures or 
anxieties justify falsely obtaining unemployment benefits or PPP loan proceeds, they provide 
context for the environment in which Mr. Lomax made the terrible decisions which have led 
to a federal felony conviction.  Mr. Lomax did not utilize the funds he wrongfully obtained 
for luxury purchases, but rather used the funds to pay his debts and personal living expenses, 
including several months of back rent.  
B. 
History and Characteristics of Defendant 
Mr. Lomax is a 62 year-old non-violent offender with a limited and distant prior 
criminal history.  He has been gainfully employed most of his adult life, including 30 years 
working for a heating and cooling company where his duties included lifting heavy 
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equipment, to which Mr. Lomax attributes his significant back problems.  He has been 
unemployed since 2021 due to his health. 
 
Mr. Lomax’s medical conditions, as detailed in paragraph 58 of the Presentence 
Investigation Report, include congestive heart failure, and a host of back and leg problems, 
as well as insomnia, post-COVID chronic shortness of breath, anxiety, depression, night 
terrors and claustrophobia. He is prescribed numerous medications.  He needs surgery to 
implant a spinal stimulator with the goal of managing his lumbar radicular pain.  Following 
this surgery, he will require twelve weeks of recovery and/or postoperative care.  
 
Mr. Lomax lives in a rented home with this ex-wife Yvonne Litton in Hurricane, West 
Virginia.  Although he is no longer married to Ms. Litton, they share several adult children 
and are “family.”   Ms. Litton suffers from progressively worsening multiple sclerosis.  Mr. 
Lomax is her primary caregiver.  In a letter to the Court, Ms. Litton detailed the ways in which 
Mr. Lomax cares for her, including cooking for her, bringing her food (which she cannot 
carry), grocery shopping, helping her with bathing and bathroom trips and driving her to her 
medical appointments.  Ms. Litton writes that, “without his help, I don’t know what I would 
do.”   
Ms. Litton’s thoughts are echoed by her and Mr. Lomax’s daughter, Lindsey 
Meddings, who, in a letter to the Court, states that her father is her mother’s primary caregiver, 
including stabilizing her mother as she walks, assisting if she falls, and helping her with her 
daily tasks which are becoming progressively more difficult for her to complete on her own.  
Mr. Lomax looks forward to putting his criminal case behind him, and would be 
grateful if he could do so in a manner which would allow him to continue to care for Ms. 
Litton. 
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II.  
 Section 3553(a)(2)(A-C): need for the sentence to reflect the seriousness of the  
offense; promote respect for the law, and provide just punishment for the offense;  
afford adequate deterrence to criminal conduct; and protect the public. 
 
Mr. Lomax submits that a downward variance sentence of probation is sufficient to satisfy 
the purposes of sentencing established by Congress in 18 U.S.C. §3553(a).  Although the United 
States Sentencing Guidelines recommend a relatively short sentence of imprisonment in this case, 
Mr. Lomax is statutorily eligible for a sentence of between one and five years of probation, and 
the United States Sentencing Guidelines do not advise that Mr. Lomax should be ineligible for 
probation.  The United States Supreme Court has noted that offenders on probation are “subject to 
several standard conditions that substantially restrict their liberty.”  Gall v. U.S., 522 U.S. 38, 48 
(2007).  A sentence of probation, which will substantially restrict Mr. Lomax’s liberty, is 
sufficient, but not greater than necessary, to adequately reflect the considerations listed in 18 
U.S.C. § 3553(a)(2).  Mr. Lomax has fully complied with the terms of his pretrial bond, indicating 
that he is amenable to supervision.  
 Mr. Lomax’s age (62 years) is indicative of a low chance of recidivism, and weighs in 
favor of a downward variance in this case.   The United States Sentencing Commission has studied 
recidivism rates among offenders and found that “a federal offender’s age and criminal history 
were closely correlated with their likelihood of reoffending.”  See Recidivism and Federal 
Sentencing Policy, Recidivism and Federal Offenders: A Comprehensive Overview.  In a study of 
25,431 federal offenders, the Sentencing Commission found that “for each age group studied, the 
older the age group, the lower the re-arrest rate.”  Id.  For offenders aged over 60 years, like Mr. 
Lomax, the re-arrest rate was 16%, as compared to 67.6% for offenders younger than 21 years old 
at the time of arrest.  Id.  The Sentencing Commission, noted that “[s]tudies have repeatedly shown 
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older offenders to have a lower risk of reoffending and the Commission’s study confirmed this 
finding.”  Id.   
Mr. Lomax’s significant medical conditions and need for a back surgery to manage his pain 
symptoms weigh in favor of a downward variance for a sentence of probation or home 
confinement, which would allow him to obtain necessary medical treatment in the most effective 
setting, particularly given his age.   
Mr. Lomax’s service as the primary caregiver for his ex-wife, Ms. Litton, also weighs in 
favor of a downward variance.  If Mr. Lomax is incarcerated, Ms. Litton will lose the essential 
caretaking Mr. Lomax is provides to her every day.  A sentence of probation or home confinement 
would allow Mr. Lomax to continue to provide essential caretaking to Ms. Litton.  
Mr. Lomax’s conduct, which led to his conviction, has caused him considerable stress, 
anxiety and shame.  He understands that financial crimes are serious crimes. He is prepared to 
accept the Court’s determination of a just punishment for him.  
III. 
Section 3553(a)(2)(D): That the sentence imposed reflects the need to provide the 
defendant with needed educational or vocational training, medical care, or other 
correctional treatment in the most effective manner. 
 
As stated, Mr. Lomax’s medical conditions and need for treatment would be most 
effectively addressed in a setting other than incarceration.  
IV. 
 Section 3553(a)(3): The kinds of sentences available.  
 
Although the United States Sentencing Guidelines recommend a short term of 
imprisonment in this case, Mr. Lomax is eligible for not less than one nor more than five years’ 
probation under 18 U.S.C. § 3561(c)(1), and the Sentencing Guidelines do not recommend that he 
be ineligible for probation, as is sometimes the case even when a defendant is statutorily eligible 
for probation.  The Court may fashion a sentence which includes a term of probation, including 
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special conditions of home confinement.   In Mr. Lomax’s case a sentence of probation is 
sufficient, but not greater than necessary, to satisfy the purposes of sentencing.  
 
Dated: November 6, 2024 
 
 
 
 
 
 
 
 
 
 
 
Respectfully submitted,  
 
 
 
 
 
 
 
GARY LOMAX 
 
 
 
 
 
 
 
 
By Counsel: 
 
 
 
 
 
 
 
 
/s/ Gerald M. Titus III 
 
 
 
 
 
 
 
Gerald M. Titus III 
 
 
 
 
 
 
 
Spilman Thomas & Battle, PLLC  
P.O. Box 273 
Charleston, WV  25321-0273 
304.340.3800 
304.340.3801 fax  
gtitus@spilmanlaw.com  
 
 
 
 
 
 
 
 
 
 
 
Case 2:24-cr-00114     Document 23     Filed 11/06/24     Page 6 of 6 PageID #: 63

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